Sturges v. Swift

32 Miss. 239

• Court: Mississippi Supreme Court
• Decided: October 15, 1856
• Status: Published

Opinion

Pishee, J.,

delivered the opinion of the court.

This was an action in the Circuit Court of Copiah county, by plaintiff below to recover the amount of a due-bill executed by the defendant to the plaintiff. The defence set up is, that the parties were co-partners, and that the due-bill was executed for a balance due by the defendant to the plaintiff on account of co-partnership transactions; and that the co-partnership not having been dissolved, the plaintiff’s remedy was in a court of equity. We disagree with counsel in this position. One partner may sue his co-partner, at law, on a note, obligation, or even an account stated, ascertaining the sum clue. The object of going into equity is, to get an account concerning matters about which the parties are unable to agree; but to hold that when they have agreed and given a legal shape to their contracts, such contracts cannot be enforced at law, would be equivalent to holding that either the subject was of such a nature, or the relation of the parties such, that the law would not permit them to contract. The almost universal rule is, that where there is not a legal prohibition, parties may contract upon the principle that the law acts by restraint and not by conferring rights.

The question as to the set-oif has been settled by former decisions.

Judgment affirmed.